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15 October 2014

Free speech at risk – again

Free speech at risk – again

Photo credit: UK home office via creative commons

During her speech to the Conservative Party Conference at the end of September, home secretary Theresa May announced that the Conservative election manifesto will include commitments to introduce 'banning orders' for extremist groups and 'extremism disruption orders' for individual extremists who promote hate but contrive to remain within the existing laws.

In the wake of the Birmingham 'Trojan Horse' scandal such proposals may at first sight seem designed to meet genuine fears since they appear to address directly the problem of Islamist-inspired terror. On a closer look, however, they could pose a serious danger to fundamental civil liberties including restricting free speech for everyone. Silencing Islamist hate preachers by banning their access to the internet and media may look reasonable, but as David Cameron and the Home Office have made clearthe net is intended to be cast much wider to pick up the 'full spectrum of extremism' –not just the so-called 'hard end' of extremism that the UK's anti-terrorism policy has focussed on to date. The spreading or inciting of hatred on grounds of gender, race, religion, and sexual orientation will certainly be targeted. But the net is also intended to catch the undertaking of 'harmful activities' of an 'anti-democratic' nature.

This looks like a recipe for confusion and difficulty as a wide range of non-violent activities deemed 'political' could effectively be banned or severely restricted under such proposals. The police would be empowered to seek High Court orders to ban the 'harmful activities' of anyone deemed by government or public authorities to be 'extremist'. The very broad definition of 'harmful' would include any risk to public order but legal experts consider that this would also even include perceptions of harassment, alarm or distress, along with the all-encompassing but vague 'threat to the functioning of democracy'. As part of what would amount to a major extension of state interference in civil life, appointments of people considered to be 'extremists' to positions of influence or authority, for example in schools, would be caught by vetting procedures. Compliance with so-called 'British values' –which appear to focus on 'political correctness' and the 'equality agenda' –would also be enforced, making use of powerful enforcement bodies such as the Charities Commission.

But should not freedom of speech be regarded as a fundamental 'British value'? And who decides how the 'values' should be defined or what is 'right' or 'wrong'?

The proposed thresholds are extremely low. There are already strong legal standards that ban the incitement of hatred and violence and the new proposals would lower the thresholds for potential restrictive action to include situations where the government has merely to believe that someone might create a risk of violence by virtue of their activities. Banning orders against individuals and groups could be issued merely on the grounds that government ministers 'reasonably believe' that there is a risk to the public or to 'democracy'. Membership of, association with, or funding of banned people or groups would become a criminal offence.

The whole scheme contains worrying echoes of sections of the notorious hard-fought 2006 Religious Hatred Bill which were ultimately defeated. And it was only in 2013 that the Anti-Social Behaviour, Crime and Policing Bill was introduced into Parliament incorporating a provision to create 'Injunctions to Prevent Nuisance and Annoyance'. The Bill was widely opposed for the broad and undefined scope of 'Nuisance and Annoyance' and defeated in the House of Lords in January 2014. Both Labour and Conservative home secretaries over many years have harboured ambitions to effectively introduce restrictions on free speech and Theresa May now thinks she has found the pretext for following them through. On the basis of what is being proposed, any restrictions would include bans on broadcasting and web-based, social or print media as well as public protests or speeches at public events. Risky posts on Facebook and Twitter would require advance police approval.

Unsurprisingly, serious concerns have immediately been expressed by MPs and civil liberties groups that the proposals could involve the criminalisation of ideas, thoughts and views. Former attorney general, Dominic Grieve, commented that they could 'simply fuel resentment' in the country, warning that 'if there is to be any restriction on freedom of expression outside the criminal law' then the government must tread extremely cautiously. Political organisations like the English Defence League, the Socialist Workers Party and various anti-abortion and animal rights groups could easily be prominent casualties of the proposals which are intended to be primarily aimed at organisations involving terrorism or the overthrow of the political order. However, any group considered to be inciting hatred would at risk.

Extremist disruption orders, which apply to individuals, would be issued by a High Court judge in response to a police application based on the low legal test of 'balance of probabilities' rather than the usual protective test of 'beyond reasonable doubt'. In practice, this would mean judges would not have to be sure before they decide to remove the right of free speech from British citizens.

The potential power for government selectively to target individuals and groups they don't like would be immense if these proposals became law as drafted. It is difficult to see how they could be workable in practice, but the potential for misuse is high and religious liberty would almost certainly become a strong candidate for restrictions. A well-known Christian group, as well as numbers of street preachers, have already been accused under the present system of being threats to public order and a cause of harassment, alarm and distress. It's a small step towards being accused of inciting hatred. The government may claim that there could be necessary albeit unintended consequences of legislation which is primarily aimed at the real threats of extremist terrorist, neo-fascist and revolutionary groups. Nevertheless, the proposed law can and will readily be used or misused by those intent on silencing those whose views they dislike.

Christians have been at the forefront of battles to preserve civil liberties such as free speech for many years. It seems as if renewed and wide-ranging threats to religious liberty could soon become an unwelcome reality once again after the next election.